ARTICLE 90 Section SAVING CLAUSES; REPEAL; WHEN TO TAKE EFFECT 1568. Act to apply to actions and proceedings hereafter commenced. 1569. Pending actions and proceedings. 1570. Pending proceedings begun by state writ. 1571. Writs heretofore abolished. 1572. Application of certain provisions to various courts. 1573. Existing rights preserved. 1574. Posting or publication under special statutes. 1575. Special statutes applicable to actions against the city of New York. 1576. Term and tenure of office. 1577. Repeal of code of civil procedure. 1578. When act takes effect. § 1568. Act to apply to actions and proceedings hereafter commenced. This act shall apply to all actions and special proceedings hereafter commenced. In determining whether the action or special proceeding has been commenced, for the purpose of applying thereto the provisions of this act, the action or proceeding shall not be deemed to have been commenced in either of the following cases: 1. If, before this act takes effect, a summons in an action, or a citation, issued from a surrogate's court, has been served upon one or more, but not upon all of the persons to be served; 2. An order for the service of a summons by publication has been made, but service thereunder has not been completed; 3. If, in a special proceeding, elsewhere than in the surrogate's court, the petition or other papers upon which the first order, process or other mandate may be made or issued, has not been presented. Editorial note-Old CPA article 89 renumbered | CPA § 1530 renumbered § 1568 by L 1921, e 199, article 90, by L 1921, c 199, § 14. In operative § 14. effect October 1, 1921. Supplementary proceedings not commenced-Order Source-CCP 3348-Revisers' Note. Original signed but not served (Dorfman 100 Mis 592 166 NYS 404). § 1569. Pending actions and proceedings. Proceedings pursuant to law in an action or special proceeding taken prior to the time this act takes effect shall not be rendered ineffectual or impaired by this act or by the repeal thereby of any provision of the code of civil procedure, unless otherwise expressed, and subsequent proceedings in such action or special proceeding must be conducted in accordance with the laws in force on the day before this act takes effect, except as otherwise provided in this article, and except that the court or judge may apply thereto, in the interest of justice, any remedial provision of this act not inconsistent with the proceedings theretofore had or taken in such action or special proceeding. The provisions of article nine of this act are expressly made applicable to pending actions and proceedings. Source CCP 88 3349, 3352-Revisers' Note. Orig | costs only (Bean 24 Hun 353). To sell realty inal CPA § 1531 renumbered § 1569 by L 1921, by administrator already had unaffected by new c 199, § 14. limitations (Rischel 187 NYS 722). Proceedings had in action unimpaired-Allowance of costs on appeal (Pruyn 44 Hun 587). Lien of judgment (Stephenson 5 NYS 749). Proceedings had in special proceedings unimpaired -Supplementary proceedings on judgment for Subsequent proceedings in action governed by new act Appeal, right of (Kincaid 25 Hun 237). Costs, allowance and taxation (Munson 43 Hun 214; Garling 27 Hun 112). Trial of issues. manner of (Eggers 18 NYS 181). 1570. Pending proceedings begun by state writ. The substitution, by this act, of an order in place of a state writ shall not impair a proceeding now pending, begun by such a writ; but further proceedings therein, so far as practicable, shall be in accordance with the provisions of this act, as though the proceedings were begun by an order. Source New-Revisers' Note. Original CPA § 1532 renumbered § 1570 by L 1921, c 199, § 14. § 1571. Writs heretofore abolished. The omission from this act of reference to a writ heretofore abolished shall not be deemed to revive such writ. Source-New; proposed by reason of the omis- Revisers' Note. Original CPA § 1533 renumbered sion of CCP §§ 1293, 1983, and the sentence of § 1571 by L 1921, c 199, § 14. § 2100 abolishing the writ of consultation § 1572. Application of certain provisions to various courts. A provision of this act which is a substantial re-enactment of a provision of the code of civil procedure which, by the terms of such code, was expressly made applicable to a specified court or courts, shall be applicable to the same court or courts in the same manner and to the same extent as the former provision. Source -CCP § 3347 in part-Revisers' Note. Original CPA § 1534 renumbered § 1572 by L 1921, c 199, § 14. Star (*) means read Not into note heading. Appellate division: provisions applicable-Mandamus against chamberlain of CofNY to pay state treasurer funds paid into court by public administrator and remaining there over twenty years (Maltbe 172 NYS 483). City court of Elmira: provisions applicable-Replevin bond, amendment of, CCP § 730 (Rich 64 NYS 333). City court of NYCity: provisions applicableActions, consolidation of, CCP 8 817 (Bush 2 NYS 391). Appeals under CCP § 1000 (Dickson 45 Mis 572, 91 NYS 36). Body execution (Weinus 170 NYS 173). Default judgment (Hein 184 NYS 78). Interpleader by order (USM&TCo 130 NYS 303; Krugman 45 Mis 346, 90 NYS 448; Wells 87 NYS 480), CCP $ 820 (Smith 2 NYS 617). Equitable defenses CCP § 507 (Mack 20 AbNC 293), equitable defense in action at law (Oppenheimer 154 AD 593, 139 NYS 894). Execution: recital of, presumptive evidence, CCP § 1471 (Goldman 49 Hun 157, 1 NYS 599), stay of without undertaking CCP $$ 772, 1005 (Margolies 34 Mis 405, 69 NYS 646). Judgment amendment of by correcting defendant's name (Fisher 147 NYS 390). Jurisdiction in actions against executors and administrators CCP 8 316 amended by L 1889, c 441 (Knoop 11 NYS 773). Stay of proceedings pending payment of costs in former action (Murphy 125 NYS 624). City court of Niagara Falls: provisions applicable Amendment of judgment by correcting defendant's name (Gianfrancheschi 146 NYS 859). Common pleas: provisions applicable-Actions, consolidation of CCP § 818 (Sire 15 Daly 40, 3 NYS 533; 22 AыNC 621). Exercising of surrogate's powers (Gilman 17 NYS 494). County court: provisions applicable-Costs, on reversal of order granting new trial CCP § 3251, subd 4 (Cusick 47 Hun 455). New trial in actions originating in Justice's Court, CCP § 999 (Hinman 34 Hun 178). Courts of appeals: provisions applicable-* Preference, causes entitled to, CCP § 791 (Nichols 135 NY 634). Court of claims: provisions applicable-Findings, CCP § 1022 (Ostrander 192 NY 415). District court: provisions applicable-Costs for removal of action CCP c 21, tits 1--3 (Levene 62 AD 195, 70 NYS 913; Mattes 19 NYS 222). Execution, issuance of after 5 years from entry of judgment, order of court necessary (Herrman 15 Daly 290, 6 NYS 514). General sessions: provisions applicable-Appeal of bastardy proceedings to general term upon common law writ of certiorari (PxFuller 29 Hun 47). Justice's court: provisions applicable Affidavit of justification, amendment of, CCP §§ 728--730 (Bell 25 AD 461, 50 NYS 982; Clark 69 Hun 445, 23 NYS 447). *Appeal to county courts, CCP 3070--3073 (Zoller 45 Hun 319). *Arrest, CCP § 549 subd 4 (Connor 117 AD 349, 102 NYS 427). Complaint, amendment of, CCP 8 723 (Argersinger 54 Hun 613, 7 NYS 923). Costs: additional, CCP § 3258 (Porter 25 Hun 184), under CCP § 3245 (Marsh 31 Hun 514). Damages power to treble, CCP § 1184 (Layton 61 AD 447, 70 NYS 679). Judgment, amendment of by inserting correct name of defendant (Furantz 163 NYS 700). Jurors: objection to disqualification to be taken within six months, CCP § 1166 (Bradt 81 AD 295, 81 NYS 105), peremptory challenge of, CCP § 1176 (Lasher 68 NYS 845). Municipal court of New York City: provisions applicable *Appeal from judgment ordering new trial, settled case on (Rubin 125 NYS 546). Attachment undertaking, ammendment of, CCP 88 729, 730 (Finn 65 NYS 250). Body execution (Delbon 165 NYS 534). *Costs, taxation of: fee of witness called by plaintiff (Leczycki 144 NYS 398), making and serving amendments on appeal from (StandardSCo 165 NYS 81). *Dismissal of case marked "reserved generally" and never restored to trial calendar (Junk 151 NYS 63). *Dismissal of complaint in final judgment preventing new action for same cause, CCP § 1209 (Stecher 45 Mis 340, 90 NYS 332). *Interpleader by order (See Jacobs 51 AD 542, 64 NYS 953). Judgment: amendment of, by correcting defendant's name (Kriegelman 155 NYS 355; Corn 133 NYS 447), *after defendant has become nonresident (Schallock 152 NYS 226), order for on less than two days notice (Porter 149 NYS 956), *vacation of (LaSpina 126 NYS 88), *under CCP tit 3, c 11 (Barron 51 Mis 589, 101 NYS 72). Judgment on pleading (Maune 124 NYS 504; Roberts 62 Mis 261, 114 NYS 898), *under CCP § 547 (Martin 62 Mis 490, 115 NYS 64). *Limitation upon uniting separate causes of action (Mackey 78 Mis 145, 137 NYS 929). Order for examination of adverse party before trial (Scheidlinger 94 Mis 322, 158 NYS 27; Mitchell 158 NYS 31). *Parties, action by one of numerous, under CCP 8 448 (Reed 51 Mis 574, 101 NYS 39). *Security for costs required of nonresident (Chapman 115 NYS 160). *Service of papers by mail (Schallock 152 NYS 226). *Service of summons upon corporation (Doykos 127 NYS 227). *Staying proceedings for nonpayment of costs under CCP 8 779 (Hirschfield 59 Mis 154, 110 NYS 264; Gross 56 Mis 649, 107 NYS 806). Suspension of lien of judgment filed with county clerk (Danzillo 148 NYS 996). Municipal courts: provisions applicable-Amendment involving new cause of action or defense under CCP §§ 723, 2944 (Shirtcliffe 68 AD 375, 74 NYS 189). Oyer and terminer: provisions applicable-County of Seneca: *drawing jurors CCP §§ 1027, 1062 (PvJohnson 110 NY 134). Appeal Special sessions: provisions applicablefrom in bastardy proceedings, under CCP 88 1237, 1353 (PxThomann 60 Mis 414, 113 NYS 581). Superior court: provisions applicable-Actions, consolidation of, CCP § 818 (Carter 19 NYS 244). Supreme court: provisions applicable Amendment in summary proceedings, CCP §§ 723, 3347 subd 6 (Rogers 28 Mis 242, 58 NYS 1073). Condemnation proceedings not abated by transfer of stock of lessor corporation (NYEIRCO 17. NYS 778; Metropolitan EIRCO 12 NYS 506). Costs, CCP § 3347 subd 7 (Snyder 26 Hun 325). New trial CCP §§ 2548, 2588 (Clark 40 Hun 233). Surrogate: provisions applicable-Abatement of special proceedings, CCP § 755 (Camp 81 Hun 387, 30 NYS 884; Smith 1 HowNS 64). Appeal: from decree probating will, CCP c 14--20 (Gates 26 Hun 181), from proceedings to punish for contempt (Dissosway 91 NY 235), necessity of findings, mere notice insufficient, CCP § 2574 (Sayre 3 NYS 388). Contempt proceedings, CCP § 2555 (Snyder 34 Hun 302). Costs allowance before payment of sale proceeds (Laird 42 Hun 136), attorneys not liable for, CCP 3278 (Rasch 28 CivP 98, 55 NYS 434), limiting allowance in lieu of, CCP §§ 308, 309 (Gray 91 NY 502). Decree, vacation of, governed by CCP § 3347, subd 8 (Telden 98 NY 434). Execution, necessity of docketing decree, CCP § 2554 (Bingham 33 Hun 211). Judgment, entry of, after death of party not allowed (Stewart 153 NYS 453; Smith 1 HowNS 64). *Parties, additional, CCP $ 452 (Telden 5 CivP 449), substitution of, CCP § 756 (Telden 5 CivP 449). Sale of decedent real estate, proceeding for unheated prior to September 1. 1880, CCP 3347 subd 11 (PxNash 31 Hun 317). Statute in force prior to August 31, 1880 govern (Allen 8 NYS 182). | phenson 5 NYS 749; Moreuns 51 Hun 89, 5 Trust funds, deposit of, under CCP § 813 (Chesterman 75 AD 573, 78 NYS 345). Cited as to-Criminal cases in courts of record (PvCosmo 205 NY 91; People 116 NYS 821). Cited but not applied-Levy 159 NYS 904; Schulz 140 NYS 429; Eggers 18 NYS 181; Ste NYS 453; Pruyn 44 Hun 587; Republicof Mexico 37 Hun 536; PvCohocton 25 Hun 13; Goldman 21 AbNC 362; Rochester 19 AыNC 421; Andrews 53 Supr 522; Schultz 49 Supr 95; Goldman 14 CivP 392; Gilman 12 CivP 179; Singer 6 CivP 389. § 1573. Existing rights preserved. The provisions of this act, or the repeal of any provision of the code of civil procedure thereby, shall not affect or impair any act done or right accrued or acquired, or any liability, penalty, forfeiture or punishment incurred or imposed, or any limitation or defense accrued or established, prior to its enactment, but the same may be asserted, enforced, prosecuted or inflicted in the same manner and to the same extent as if this act had not been passed. Source CCP § 3352-Revisers' Note. Original CPA § 1535 renumbered § 1573 by L 1921, c 199, § 14. Star (*) means read Not into note heading. Rights preserved-*Appeal, right of not accrued (See Kincaid 25 Hun 237). Costs appeal from justice's court (Pruyn 44 Hun 587; *Munson 43 Hun 214; *Garling 27 Hun 112; Sexton 2 Me-| Carty 94), *not accruing until award (Wheaton 11 CivP 90). Creditors of decedent upon whose estate letters granted more than three years prior to September 1, 1880. to apply for order to sell realty (O'Flynn 136 NY 412). *Equity, manner of trial of issues (Eggers 18 NYS 181). Limitations of cause of action: accrued (PxSheridan 13 AbNC 413), only those cases exempt in which statute of limitations had accrued (Van Dyke 7 StR 710), for personal injury (Carpenter 24 Hun 464). Supplementary proceedings: for costs (Bean 24 Hun 353), limitation to order for examination of debtor under § 292 CP (Campbell 2 NYS 615), *not made pursuant to § 414 CCP (Conyngham 125 NY 200). Liability enforcible against-Assignee of cause of action pendente lite for costs (Olmstead 2 How NS 1). Decedent's realty (Reed 48 Hun 51). Heirs, to satisfy ancestor's mortgage out of property descended to them (See Hauselt 124 NY 349). § 1574. Posting or publication under special statutes. Each provision of this aet, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places in which notices or other legal papers must or may be posted, in a particular locality, or in a particular case. Source--CCP § 3340 unchanged-Revisers' Note. Original CPA § 1536 renumbered § 1574 by L 1921, c 199, § 14. § 1575. Special statutes applicable to actions against the city of New York. Each provision of this act is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, which is applicable exclusively to an action against the mayor, aldermen, and commonalty of the city of New York, including the recovery, entry, and collection of a judgment in such an action. Source CCP § 3341 unchanged-Revisers' Note. | Personal injury action against city outlawed in § 1576. Term and tenure of office. This act shall not affect the title or tenure to any office or employment or the salary or emoluments thereof, but the same shall continue as heretofore until modified or abolished. Source CCP § 3354-Revisers' Note. Original | CPA § 1538 renumbered § 1576 by L 1921, e 199, § 14. § 1577. Repeal of code of civil procedure. Chapter four hundred and forty-eight of the laws of eighteen hundred and seventy-six, chapter one hundred and seventyeight of the laws of eighteen hundred and eighty, and all statutes amendatory thereof and supplementary thereto, which constitute the code of civil procedure, are hereby repealed. Source -New-Revisers' Note. Original CPA § 1539 renumbered § 1577 by L 1921. c 199, § 14. § 1578. When act takes effect. This act shall take effect on October first, nineteen hundred and twenty-one. Source Original CPA § 1540, renumbered § 1578 | the Civil Practice Act from April 15, 1921, until by L 1921, c 199. § 14, amended by L 1921. October 1, 1921. c 199, § 26, to postpone the operative effect of 100 282 .1117 INDEX TO CIVIL PRACTICE ACT REFERENCES are to the sections of the Civil Practice Act unless otherwise shown. necessary. ABANDONMENT Motions Pleadings, answered Failure to file. Reply Replevin, portion of claim 282 See Executors and Administrators; Guard- .1403 Proceeds of sale, etc., of infant's real es .1403 Continuance, allowing or compelling 84 Actions on Death of one of several parties.. 85 Death of sole party 84 Itemized statement 246 Extending time.. 99 Accounts (Cont'd) On transfer of interest or devolution of Limitations 56 83 Referring issues.. 466, 467 Fiduciaries Counterclaim, limitations, effect on Cross-action, trial with original action When authorized.. Where brought... Death of party, continuance of action. Committee of incompetent.. Filing by sureties on bonds of, discharge of ..1378-1381, 1383 87 sureties 158 87 Receiver, presenting. 976 84-86 Supplementary proceedings. 811 Public officers Officer bringing suit. 90,91 Personal injury action.. 89 See, also the titles of the particular officers. 685 Plaintiff, failure to continue Receiver 90, 91 See Affidavits. Devolution of liability not to cause 83 Disability of judge .93, 94 Bonds or undertakings, certiorari proceed- ..1264 Marriage 88 Certificate of redemption from execution New parties, amendment of pleadings 747 How brought in 87 Certificates of sale on execution. 716 Supplemental summons. 87 Certificate of satisfaction on redemption Order of court for abatement. 88 from execution sale. 741 Partnership action, using deceased's name not to cause 223 Fees of officers for taking.. .1562 Part of cause of action surviving, bringing Indebtedness, writing required. 44, 59 in parties.. 85 Instruments entitled to. 386 Removal of officer .90, 91 Judgments, necessity. .533 1030 Removal of trustee. 90, 91 Power of attorney to satisfy judgment... 530 530 82 Submitting controversy on agreed facts Searches by, admissibility in evidence..... 385 See Bills and Notes. See Abatement and Revival; Accounts; Ap- 546 |